collegium

Chief Justice of India (CJI) HL Dattu and the apex court’s most senior judges have decided to continue holding collegium meetings to recommend new judges, reported the Indian Express, despite law minister DV Sadananda Gowda late last month warning that there would be no new judges until the National Judicial Appointments Commission (NJAC) was functioning and the writs challenging the body were disposed of.

No names have been finalised yet by the collegium, reported the Express, but sources said that the collegium felt that without the NJAC and constitional amendment having been notified, the collegium should continue meeting and recommending names for appointment to the bench.

Ex-Supreme Court judge and high court chief justice Markandey Katju wrote on his blog that he had once spiked his own recommendation of a high court lawyer for judgeship, because that “male lawyer was having a live in relationship with a lady lawyer to whom he was not married. They were often seen openly going to parties, functions and restaurants together. Due to this advice I dropped the idea of recommending the name of that lawyer for Judgeship of the High Court.” Satyam Bruyat

When people later criticised his decision afterwards, he wrote:

My reply was that while I myself am fairly modern, Indian society is largely still conservative, and largely still does not approve of live in relationship, though it is not illegal.. While lawyers can have live in relationship, it is as yet not ethically permissible to Judges.

So if you want to be judge, please do not have a live in relationship

In 2010, Katju decided in the Supreme Court that “Indian society is changing, and this change has been reflected and recognized by Parliament by enacting The Protection of Women from Domestic Violence Act, 2005”, accepting that “relationship in the nature of marriage” could potentially also include “live in relationships”. Hat-tip @mohitsingh8

Chief justice of India HL Dattu has withdrawn the practice of his predecessor RM Lodha, who had asked high courts to consult non-collegium judges before sending their judge-recommendations to the Supreme Court, reported the Economic Times.

The high court collegium, which consists of the chief justice of a given high court along with his two senior most colleagues send their nominations for judgeships to the Supreme Court collegium. Former CJI Lodha had asked the high court collegiums to also consult two judges outside the collegium, before forwarding the final list of names for elevation to the SC.

CJI Dattu has withdrawn this request, after the high court cited “difficulties” in following the practice.

Senior counsel Fali Nariman has added another to the four public interest litigations (PILs) against the National Judicial Appointments Commission (NJAC), which will be heard on Monday.

Together with advocate Subhash Sharma, he claimed that the constitutional amendment “severely affects and damages the basic structure of the Constitution viz the independence of the judiciary” and gives “unbridled power” to parliament, reported the Indian Express.

Allowing for any two out of three non-judicial members of the NJAC to scuttle appointments would take away from primacy of the opinion of the three senior Supreme Court judges on the NJAC. The law was counter to the nine-judge constitution bench judgment in the so-called Second Judges case - one of three cases that was fundamental in the establishment of the collegium system.

The Law Commission chairman Justice AP Shah has recommended that the tenure of the Chief Justice of India (CJI) should be fixed to at least two years, and that the Judicial Appointments Commission (JAC) should consist of at least four judges, including the CJI as chairperson, reported The Hindu and the Indian Express.

The minimum CJI tenure should take effect after the current roster of sitting Supreme Court judges in line for the CJI post will have retired by August 2022, with Justice NV Ramana as the last CJI under the old system, recommended Shah in a note he sent to the law minister Ravi Shankar Prasad.

Furthermore, he recommended that judges should have a three year “cooling off period” after retirement before they take up any government jobs. The JAC, apart from the four sitting Supreme Court judges, should also include the law minister, with an eminent jurist and an eminent member of civil society picked by the CJI, the prime minister and the leader of the Lok Sabha opposition.

Shah’s proposal was reportedly discussed in Monday’s meeting between the law ministry and top lawyers and retired judges.